We must preserve our Bill of Rights including our rights to free speech. We must not allow officials to diminish and ration that right. We must not let this proposal become the supreme law of the land. – Senator Chuck Grassley, Sept. 10, 2014
Text of First Amendment on stone tablet facing Pennsylvania Avenue — the Newseum
It’s over now, the campaign to amend the First Amendment. The Democratic-led effort died in the Senate yesterday by a vote of 54-42. Thankfully, the constitutional theatrics have ended and the 1791 text remains safe, at least from any Article V threat by lawmakers.
Not surprisingly, reports Burgess Everett writing in Politico, “Senate Republicans unanimously rejected a constitutional amendment sought by Democrats that would allow Congress to regulate campaign finance reform. . . . The failure of the proposal followed a surprising result on Monday, when the measure advanced past an initial filibuster despite broad GOP opposition to the measure.”
“Grassley and two dozen other Senate Republicans voted to advance the bill,” added Everett, “to blunt Democrats’ plans to hold a second round of campaign-flavored Democratic votes on proposals aimed at raising the minimum wage, overturning the Hobby Lobby Supreme Court decision, chipping away at gender pay disparities and reforming the student loan system.”
After the vote, Senate Majority Harry Reid (D-Nev.) said: “Today, Senate Republicans clearly showed that they would rather sideline hardworking families in order to protect the Koch brothers and other radical interests that are working to fix our elections and buy our democracy.” Senator Chuck Grassley (R-Iowa) had a quite different view: “The proposed amendment would restrict the most important speech the First Amendment protects, core political speech. It’s hard to imagine what would be more radical than the Congress passing a constitutional amendment to overturn a dozen Supreme Court decisions that have protected individual rights. Free speech would be dramatically curtailed.” (See also text of Senator Grassley’s floor statement.)
Looking back: Justice Stevens takes the stage
The constitutional campaign movement got a big boost last April when Justice John Paul Stevens proposed an amendment to the First Amendment. Remember, he did so in his book Six Amendments: How and Why We Should Change the Constitution. His proposed amendment provided:
Neither the First Amendment nor any other provision of this Constitution shall be construed to prohibit the Congress or any state from imposing reasonable limits on the amount of money that candidates for public office, or their supporters, may spend in election campaigns.
On April 30, 2014, Justice Stevens testified before a Senate Rules Committee at which he read a statement in defense of his proposed amendment.
Looking back: The Leahy hearing
And then on June 3, 2014, the Senate Judiciary Committee, presided over by Senator Patrick Leahy, held a hearing on a constitutional amendment introduced by Senator Tom Udall (D-NM) (see YouTube clip here) and co-sponsofed by Senators Michael Bennet (D-CO) and Jon Tester (D-MT) along with 38 others (no Republican co-sponsors):
SECTION 1. To advance the fundamental principle of political equality for all, and to protect the integrity of the legislative and electoral processes, Congress shall have power to regulate the raising and spending of money and in-kind equivalents with respect to Federal elections, including through setting limits on— (1) the amount of contributions to candidates for nomination for election to, or for election to, Federal office; and (2) the amount of funds that may be spent by, in support of, or in opposition to such candidates.
SECTION 2. To advance the fundamental principle of political equality for all, and to protect the integrity of the legislative and electoral processes, each State shall have power to regulate the raising and spending of money and in-kind equivalents with respect to State elections, including through setting limits on— (1) the amount of contributions to candidates for nomination for election to, or for election to, State office; and (2) the amount of funds that may be spent by, in support of, or in opposition to such candidates.
SECTION 3. Nothing in this article shall be construed to grant Congress the power to abridge the freedom of the press.
SECTION 4. Congress and the States shall have power to implement and enforce this article by appropriate legislation.
At that hearing Floyd Abrams voiced strong opposition to the idea of amending the First Amendment:
The description of the constitutional amendment it proposes states, in its text, that it ‘relate[s] to contributions and expenditures intended to affect elections.’ That’s one way to say it, but I think it would have been more revealing to have said that it actually ‘relate[s] to speech intended to affect elections.’ And it would have been even more revealing, and at least as accurate, to have said that it relates to limiting speech intended to affect elections. And that’s the core problem with it. It is intended to limit speech about elections and it would do just that. . . .
There were also other proposed amendments, including one proposed by Harvard Law Professor Laurence Tribe, who later withdrew his support for such an effort.
Looking back: Committee approves proposed amendment
On July 19, 2014, the Senate Judiciary Committee approved a proposed amendment to the First Amendment. The proposed amendment provided:
SECTION 1: To advance democratic self-government and political equality, and to protect the integrity of government and the electoral process, Congress and the States may regulate and set reasonable limits on the raising and spending of money by candidates and others to influence elections.
SECTION 2. Congress and the States shall have power to implement and enforce this article by appropriate legislation, and may distinguish between natural persons and corporations or other artificial entities created by law, including by prohibiting such entities from spending money to influence elections.
SECTION 3. Nothing in this article shall be construed to grant Congress or the States the power to abridge the freedom of the press.
The 10-8 vote was along party lines.
On September 8, 2014, the Senate voted to begin debate on the proposed constitutional amendment. “The measure cleared a procedural hurdle by a vote of 79-18. It was authored by Democrats, who had anticipated it would be blocked by GOP opposition. But Republicans voted to move ahead with debate, turning what was supposed to be a Democratic messaging bill against the Democrats.” [Source here]
Looking back: The ACLU flap
Finally, there was the ACLU controversy, the latest incarnation of which occurred when six former ACLU leaders contested group’s First Amendment position on campaign finance in an eleventh hour letter to the Judiciary Committee, which was strongly opposed by Ms. Laura Murphy, the director of the Washington Legislative Office of the ACLU.